JOEPA – THE “LAST” FALSE START

BY: CHRIS PSIHOULES

Pennsylvania Attorney General Linda Kelly stated that her office will not file charges against Joe Paterno for not reporting the alleged child sexual abuse by former Penn State Defensive Coordinator Jerry Sandusky. However, Paterno could face criminal charges for obstruction of justice, perjury and child protective services. Each child will also have the ability to file a civil lawsuit against Paterno for failing to prevent a third party with whom he had a supervisory relationship (Sandusky) from committing abuse.[1]

Legal Ramifications

Where Paterno will be most easily prosecuted is under Pennsylvania’s Obstruction of Justice and Perjury statutes. In Pennsylvania,

“A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.”[2]

As it currently stands, Paterno’s grand jury testimony is inconsistent with the statement of facts that former PSU Assistant Coach Mike McQueary has testified to regarding his witnessing Sandusky showering with one of the alleged victims at the Penn State University facilities. McQueary’s testimony detailed the events he saw transpire involving Sandusky sexually abusing a young boy while both were naked in the showers in 2002.[3] Paterno testified to having told Penn State Athletic Director Tim Curley that McQueary explained to him that Sandusky was engaged in fondling or “doing something of a sexual nature” to a boy, apparently minimizing the event in his description.[4] The question that will need to be answered for any party to be found guilty of perjury is – who in fact lied? If Paterno is found to have diminished the report told to him by McQueary the worst for Coach Paterno may yet be around the corner.

Although it seems clear that Paterno lacked moral judgment in the situation, his failure to report the incident to anyone other than Tim Curley (the Athletic Director) may lead to further criminal charges. As the PA Child Protective Services Law states:

“Under Pennsylvania’s Child Protective Services Law, certain individuals, including teachers and school administrators, have a legal obligation to immediately report suspected child abuse to child protective services or law enforcement, or to a “person in charge” (supervisor), who must then report the alleged abuse to the authorities. The reporting must be honest. When in writing, the reporting must also include known information about the nature and extent of the suspected abuse, along with other material details.[5]

The law could be read in two ways, both possibly implicating Paterno. First, Paterno appears to be the supervisor in the relationship between himself and McQueary. If this holds true, it would have been Paterno’s job and not Tim Curley’s to report the crime to the proper authorities. This appears to be plausible – reporting up the chain of command must have a line drawn somewhere and it seems fair to believe that Paterno, as the most dominant figure in Penn State history would be where that line stops. Furthermore, as previously mentioned, Paterno’s description of the event to Athletic Director Tim Curley appears to have downplayed the severity of the event, making it hard for Curley to gauge the importance of the matter at hand.[6] If one of these two men were responsible for reporting the event (Paterno or Curley), Paterno’s lack of detail to Curley may ultimately hold him liable under Pennsylvania’s Child Protective Services law for failure to recount the scenario.

Opinion – JoePa’s Firing

Underneath the statue of Joe Paterno that sits outside Beaver Stadium reads this, “They ask me what I’d like written about me when I’m gone. I hope they write I made Penn State a better place, not just that I was a good football coach.”[7] Ironic? Perhaps, but nonetheless something that Paterno had the opportunity to make happen. For 61 years, Paterno was the model of consistency, loyalty, and moral judgment – rarely putting a losing team on the field; having never swayed from his Penn State routes for NFL glory; and even more important, having never been accused of a NCAA violation. That all changed on November 7, 2011 when Jerry Sandusky was arrested. As I am sure many have read by now, Sandusky’s grand jury report was gruesome, to the point of intolerability, but what Sandusky did was just that, what HE did. Joe Paterno was not the monster behind the mask – he was, however, the man who seemingly could have put an end to it all. Without getting too involved in the details, which can be read here, I would like to air my opinion on the matter. Did Penn State do the right thing by firing Joe Paterno last week? No. Did they have to fire Paterno within the year? Yes. The beauty of the American Judicial system is that in this county, we are innocent until proven guilty. What Paterno did was wrong, there is no question about that, but what exactly did Paterno do? Does anyone actually have an account of facts that implicate Paterno in any wrongdoing besides bad behavior from a moral standpoint? To clarify, I am not saying that what he did, because at this juncture there is no legal claim against him, was the right thing to do. He messed up. He failed in his duties as an educator and as a coach to protect those that are most vulnerable, our children. For this, Paterno needed to be removed. However, I don’t believe it needed to be before seasons end. Why? Currently, there are too many unknowns to place the burden of this horrendous event on anyone other than Jerry Sandusky himself. Penn State fired Paterno not because they knew it was the right thing to do, they fired Paterno to mitigate their own damages. They fired him because they knew if they didn’t they would be the talk of college football until season’s end. I have news for you Penn State, you are going to be the talk of college football until season’s end no matter who your coach is. For all that is wrong with this scenario, Paterno accomplished some great things at Penn State, things one would think would afford him the opportunity to serve out his final season as head coach and be fired at a justifiable point in time. Fired at a time when someone could tell me for sure that Paterno’s lack of communication led to the escalation of Sandusky’s crimes. When someone could tell me that Paterno had the opportunity to do more. When someone could tell me that Mike McQueary, the 22-year-old graduate assistant, told Paterno exactly what he saw and that it was Paterno who had the chance to remedy the situation. In any event, what Sandusky allegedly did would have gotten Paterno fired at season’s end. As is now abundantly clear, Sandusky was Paterno’s pal and coached with him for 30+ years. Their relationship alone would have been too much for Penn State to continue to bear. Nevertheless, that relationship should not have been the reason that the greatest college football coach of all-time was fired via a phone call. Joe Paterno once said, “The minute you think you’ve got it made, disaster is just around the corner,” well Joe, I guess you got that one right.